United States v. Masserano

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 25, 1999
• Docket: 98-20906
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20906 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH SHANE MASSERANO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-92-CR-225-1 - - - - - - - - - -

June 24, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Joseph Shane Masserano, Texas prisoner # 60109-079, appeals

the district court’s Order of Dismissal denying his Motion to

Dismiss for lack of jurisdiction and the court’s denial of his

Motion for Reconsideration.

This Court must examine the basis of its jurisdiction on its

own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987). An examination of the record in this case discloses

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-20906 - 2 -

that no final judgment has been entered as a separate document as

required by FED. R. CIV. P. 58.

In an order entered on June 18, 1998, the district court

granted the Government’s motion to dismiss and denied Masserano’s

motion to dismiss. Thereafter, on July 17, 1998, Masserano filed

a motion for reconsideration. On September 4, 1998, the district

court entered an order denying the motion for reconsideration.

On September 16, 1998, Masserano filed a motion to proceed in

forma pauperis on appeal and on October 1, 1998, he filed a

notice of appeal.

If we were to treat the June 18th order as a Rule 58

judgment, Masserano’s notice of appeal would be untimely because

it was filed more than 60 days after entry of the order of

dismissal. See FED. R. APP. P. 4(a)(1)(B); Baker v. Mercedes

Benz of North America, 114 F.3d 57, 61 (5th Cir. 1997).

Therefore, we DISMISS the appeal. See Townsend v. Lucas, 745

F.2d 933, 934 (5th Cir. 1984).

Masserano may rectify the lack of a separate document

judgment by a motion to the district court for entry of judgment.

After entry of the judgment, he may appeal within the time

prescribed by Rule 4(a)(1)(B).

APPEAL DISMISSED.